Brandie Nanhee Kim v. Carolyn W Colvin, No. 2:2013cv01841 - Document 20 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this case for further proceedings in accordance with this Memorandum Opinion and Order and with law. See order for details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 ) ) ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting Commissioner of Social Security, ) ) ) Defendant. ) BRANDIE NANHEE KIM, 18 19 Case No. CV 13-01841-JEM MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On March 14, 2013, Brandie Nanhee Kim ( Plaintiff or Claimant ) filed a 20 complaint seeking review of the decision by the Commissioner of Social Security 21 ( Commissioner ) denying Plaintiff s application for Social Security Disability Insurance 22 benefits. The Commissioner filed an Answer on July 3, 2013. On October 28, 2013, the 23 parties filed a Joint Stipulation ( JS ). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 26 ( AR ), the Court concludes that the Commissioner s decision must be reversed and this 27 case remanded for further proceedings in accordance with this Memorandum Opinion 28 and Order and with law. BACKGROUND 1 2 Plaintiff is a 39-year-old female who applied for Social Security Disability 3 Insurance benefits on April 28, 2010. (AR 23.) The ALJ determined that Plaintiff has not 4 engaged in substantial gainful activity since March 20, 2009, the alleged onset date of 5 her disability. (AR 25.) 6 Plaintiff s claim was denied initially on September 21, 2010. (AR 23.) Plaintiff filed 7 a timely request for hearing, which was held before Administrative Law Judge ( ALJ ) 8 Lisa D. Thompson on June 30, 2011, in West Los Angeles, California. (AR 23) 9 Claimant appeared and testified at the hearing and was represented by counsel. (AR 10 23.) Vocational expert ( VE ) Aida Y. Worthington also appeared and testified at the 11 hearing. (AR 23.) 12 The ALJ issued an unfavorable decision on July 25, 2011. (AR 23-33.) The 13 Appeals Council denied review on January 22, 2013. (AR 1-4.) DISPUTED ISSUES 14 15 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 16 grounds for reversal and remand: 17 1. opinions of Edward Carden, M.D., and David Edelman, M.D. 18 19 20 Whether the ALJ provided specific and legitimate reasons for rejecting the 2. Whether the ALJ provided clear and convincing reasons for rejecting Brandie Kim s testimony. 21 STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine 23 whether the ALJ s findings are supported by substantial evidence and free of legal error. 24 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 25 924 F.2d 841, 846 (9th Cir. 1991) (ALJ s disability determination must be supported by 26 substantial evidence and based on the proper legal standards). 27 Substantial evidence means more than a mere scintilla, but less than a 28 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting 2 1 Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such 2 relevant evidence as a reasonable mind might accept as adequate to support a 3 conclusion. Richardson, 402 U.S. at 401 (internal quotation marks and citation 4 omitted). 5 This Court must review the record as a whole and consider adverse as well as 6 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 7 Where evidence is susceptible to more than one rational interpretation, the ALJ s 8 decision must be upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 9 (9th Cir. 1999). However, a reviewing court must consider the entire record as a whole 10 and may not affirm simply by isolating a specific quantum of supporting evidence. 11 Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 12 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 13 14 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the inability to engage in any 15 substantial gainful activity by reason of any medically determinable physical or mental 16 impairment which can be expected to result in death or . . . can be expected to last for a 17 continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 18 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to 19 determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 20 The first step is to determine whether the claimant is presently engaging in 21 substantial gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 22 claimant is engaging in substantial gainful activity, disability benefits will be denied. 23 Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether 24 the claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 25 746. An impairment is not severe if it does not significantly limit the claimant s ability to 26 work. Smolen, 80 F.3d at 1290. Third, the ALJ must determine whether the impairment 27 is listed, or equivalent to an impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I 28 of the regulations. Parra, 481 F.3d at 746. If the impairment meets or equals one of the 3 1 listed impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 U.S. 2 at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant 3 from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 4 Before making the step four determination, the ALJ first must determine the 5 claimant s residual functional capacity ( RFC ). 20 C.F.R. § 416.920(e). Residual 6 functional capacity ( RFC ) is the most [one] can still do despite [his or her] limitations 7 and represents an assessment based on all the relevant evidence. 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the claimant s 9 impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 10 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. 11 If the claimant cannot perform his or her past relevant work or has no past 12 relevant work, the ALJ proceeds to the fifth step and must determine whether the 13 impairment prevents the claimant from performing any other substantial gainful activity. 14 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). The claimant bears the burden of 15 proving steps one through four, consistent with the general rule that at all times the 16 burden is on the claimant to establish his or her entitlement to benefits. Parra, 481 F.3d 17 at 746. Once this prima facie case is established by the claimant, the burden shifts to 18 the Commissioner to show that the claimant may perform other gainful activity. 19 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a 20 claimant is not disabled at step five, the Commissioner must provide evidence 21 demonstrating that other work exists in significant numbers in the national economy that 22 the claimant can do, given his or her RFC, age, education, and work experience. 20 23 C.F.R. § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is 24 disabled and entitled to benefits. Id. THE ALJ DECISION 25 26 In this case, the ALJ determined at step one of the sequential process that Plaintiff 27 has not engaged in substantial gainful activity since March 20, 2009, the alleged onset 28 date. (AR 25.) 4 1 At step two, the ALJ determined that Plaintiff has the following severe 2 impairments: complex regional pain syndrome/sympathetically maintained pain 3 syndrome; and depression (20 C.F.R. § 404.1520(c)). (AR 25-26.) 4 At step three, the ALJ determined that Plaintiff does not have an impairment or 5 combination of impairments that meets or medically equals one of the listed 6 impairments. (AR 26-28.) 7 The ALJ then found that Plaintiff has the RFC to perform light work as defined in 8 20 C.F.R. § 404.1567(b) except for the following limitations: 9 . . . is able to stand or walk two hours in an eight-hour workday; is able 10 to sit six hours in an eight-hour workday; can occasionally climb ramps 11 and stairs; can occasionally balance; cannot climb ladders, ropes, or 12 scaffolds; cannot kneel or stoop; can frequently grasp, turn, or twist 13 objects with her right upper extremity; can occasionally grasp, turn, or 14 twist objects and handle, finger, or reach with her left upper extremity; 15 cannot push or pull with the left lower extremity; must avoid even 16 moderate exposure to heights and hazardous machinery, etc.; is 17 limited to simple work tasks with simple one to two-step instructions; 18 and may occasionally interact with supervisors, coworkers, and the 19 general public. 20 (AR 28-31.) In determining this RFC, the ALJ made an adverse credibility determination. 21 (AR 29.) 22 At step four, the ALJ found that Plaintiff is unable to perform her past relevant 23 work as pharmacy technician and administrative assistant. (AR 31.) At step five, the 24 ALJ found that considering her age, education, work experience, and RFC, Claimant has 25 acquired work skills from past relevant work that are transferable to other occupations 26 with jobs existing in significant numbers in the national economy that Claimant can 27 perform, including appointment clerk. (AR 32.) 28 5 1 Consequently, the ALJ found Claimant not disabled within the meaning of the 2 Social Security Act. (AR 32.) DISCUSSION 3 4 The ALJ decision must be reversed. Although the Court is skeptical of the work- 5 precluding opinions of Dr. Carden and Dr. Edelman, the ALJ decision fails to provide 6 specific, legitimate reasons supported by substantial evidence for discounting those 7 opinions. The ALJ also failed to develop the record properly regarding Plaintiff s 8 condition of complex regional pain syndrome or in regard to medication side effects. 9 Finally, the ALJ s RFC precludes the alternative work of appointment clerk. 10 I. 11 THE ALJ FAILED TO PROVIDE SPECIFIC LEGITIMATE REASONS FOR DISCOUNTING THE OPINIONS OF DR. CARDEN AND DR. EDELMAN 12 Plaintiff contends that the ALJ did not properly consider the medical evidence in 13 rejecting the opinions of Dr. Carden and Dr. Edelman. The Court agrees. 14 A. Relevant Federal Law 15 In essence, Plaintiff challenges the ALJ s RFC. A RFC is not a medical 16 determination but an administrative finding or legal decision reserved to the 17 Commissioner based on consideration of all the relevant evidence, including medical 18 evidence, lay witnesses, and subjective symptoms. See SSR 96-5p; 20 C.F.R. 19 § 1527(e). In determining a claimant s RFC, an ALJ must consider all relevant evidence 20 in the record, including medical records, lay evidence, and the effects of symptoms, 21 including pain reasonably attributable to the medical condition. Robbins, 446 F.3d at 22 883. 23 In evaluating medical opinions, the case law and regulations distinguish among 24 the opinions of three types of physicians: (1) those who treat the claimant (treating 25 physicians); (2) those who examine but do not treat the claimant (examining physicians); 26 and (3) those who neither examine nor treat the claimant (non-examining, or consulting, 27 physicians). See 20 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 28 821, 830 (9th Cir. 1995). In general, an ALJ must accord special weight to a treating 6 1 physician s opinion because a treating physician is employed to cure and has a greater 2 opportunity to know and observe the patient as an individual. Magallanes v. Bowen, 3 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If a treating source s opinion on the 4 issues of the nature and severity of a claimant s impairments is well-supported by 5 medically acceptable clinical and laboratory diagnostic techniques, and is not 6 inconsistent with other substantial evidence in the case record, the ALJ must give it 7 controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 8 Where a treating doctor s opinion is not contradicted by another doctor, it may be 9 rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. However, if the 10 treating physician s opinion is contradicted by another doctor, such as an examining 11 physician, the ALJ may reject the treating physician s opinion by providing specific, 12 legitimate reasons, supported by substantial evidence in the record. Lester, 81 F.3d at 13 830-31; see also Orn, 495 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 14 2002). Where a treating physician's opinion is contradicted by an examining 15 professional s opinion, the Commissioner may resolve the conflict by relying on the 16 examining physician s opinion if the examining physician s opinion is supported by 17 different, independent clinical findings. See Andrews v. Shalala, 53 F.3d 1035, 1041 18 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an uncontradicted opinion of an 19 examining physician, an ALJ must provide clear and convincing reasons. Bayliss v. 20 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician s opinion is 21 contradicted by another physician s opinion, an ALJ must provide specific and legitimate 22 reasons to reject it. Id. However, [t]he opinion of a non-examining physician cannot by 23 itself constitute substantial evidence that justifies the rejection of the opinion of either an 24 examining physician or a treating physician ; such an opinion may serve as substantial 25 evidence only when it is consistent with and supported by other independent evidence in 26 the record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 27 28 7 1 B. Analysis 2 The ALJ found that Ms. Kim has the medically determinable severe impairment of 3 complex regional pain syndrome/sympathetically maintained pain syndrome (AR 25) 4 but nonetheless found her capable of a limited range of light work. (AR 28.) Plaintiff s 5 primary treating physician, pain management specialist Dr. Edward Carden, provided the 6 initial diagnosis of complex regional pain syndrome as well as subsequent reports and 7 extensive treatment notes, and opined Claimant was not able to work. (AR 29-30, 2338 261, 298-308, 327-473.) An examining neurologist, Dr. David Edelman, gave a similar 9 assessment. (AR 30, 324-326.) 10 Claimant reported that in April 2006, a dog bit her on the right arm, mainly on the 11 elbow, left hand and left wrist. (AR 25.) Her treatment has included nerve blocks, 12 EMGs, X-rays, physical therapy, trigger point injections, chiropractic care, acupuncture 13 and a TENS unit. (AR 25.) An August 26 nerve conduction study showed she had left 14 radial sensory axonopathy. (AR 25.) In March 2009, she began to see Dr. Carden for 15 pain management. (AR 25.) He diagnosed complex regional pain syndrome ( CRPS ) 16 with pain in her left arm running down to the elbow and wrist and a positive Tinel sign. 17 (AR 25.) Claimant was given nerve blocks, injections, ketamine infusions, EMGS, X18 rays and physical therapy over the next year and obtained some temporary pain relief 19 but the pain always returned. (AR 233-261.) 20 In February 16, 2010, Dr. Carden issued a letter that stated Plaintiff s CRPS had 21 spread to her leg, making it difficult for her to sit for any reasonable period of time. (AR 22 29, 242.) Dr. Carden opined that Claimant is not capable of working . . . due to the fact 23 that she is taking medications that obtunds [clouds] her judgment and her inability to sit 24 for any length of time. (AR 29, 242.) Dr. Carden went on to say that Plaintiff is not 25 capable of joining and functioning with the workforce in a reasonably productive 26 manner. (AR 242.) In September 2010, Dr. Carden completed a Multiple Impairment 27 Questionnaire which opined that Plaintiff could sit or stand for less than an hour and had 28 to change positions every 10 minutes. (AR 29, 303.) He also found marked limitations 8 1 in grasping, turning and twisting objects with the left upper extremity. (AR 29, 304.) He 2 concluded that Plaintiff was incapable of even low stress jobs and would miss work more 3 than three times a month. (AR 30, 306-307.) In June of 2011, Dr. Carden submitted the 4 same Questionnaire with largely the same evaluation. (AR 30, 329-336.) Also, in June 5 2011, Dr. Edelman, an independent neurologist, gave the same diagnosis, assessed the 6 same limitations, and provided a work-preclusive opinion, noting that Plaintiff s pain 7 would constantly interfere with her attention and concentration, and her depression 8 would contribute to her symptoms and functional limitations. (AR 30, 324-326.) 9 Dr. Carden s opinions are supported by over 180 pages of treatment notes and by 10 Dr. Edelman. A consulting psychiatrist given great weight by the ALJ also found Plaintiff 11 to suffer from a major depressive disorder secondary to a chronic neurological disorder 12 she describes as chronic pain syndrome. (AR 31, 274.) 13 The ALJ incorporated in her RFC some of Dr. Carden s findings, particularly 14 regarding Plaintiff s left upper and lower extremities, but rejected Dr. Carden s sitting 15 restriction and work-preclusive opinion. (AR 28.) The ALJ, however, does not say that 16 Dr. Carden s treatment notes are inconsistent with his work-preclusive opinion. Rather, 17 the ALJ dismisses Dr. Carden s work-preclusive opinion, which is based on multiple 18 observations during an extensive treatment relationship, with a single sentence: The 19 undersigned has assigned little weight to Dr. Carden s opinion as it is inconsistent with 20 other evidence in the record mentioned by the ALJ, including the Claimant s own 21 descriptions of her functional abilities. (AR 30 (emphasis added).) The only contrary 22 medical evidence in the record is the August 2010 opinion of consulting internist, 23 Dr. Homayoun Saeid, M.D. (AR 30, 262-266.) Dr. Saeid found mild tenderness in the 24 left upper extremity with normal range of motion with no signs of radiculopathy. (AR 25 265, 266.) He opined Claimant was capable of lifting and carrying 50 pounds 26 occasionally and 25 pounds frequently, and could sit/stand/walk six hours in an 8-hour 27 day (AR 266), an RFC largely rejected by the ALJ. (AR 28.) Dr. Saeid offered the 28 9 1 opinion that Claimant s symptomology strongly suggests psychosomatic etiology and 2 recommended psychiatric care. (AR 266.) 3 The ALJ s reliance on Dr. Saeid s opinion to reject Dr. Carden s opinion is 4 unjustified. Dr. Saeid is an internist, not a neurologist and he saw Plaintiff but once. 5 Moreover, Dr. Saeid did not review any medical records, and his August 2010 report 6 preceded Dr. Carden s September 2010 and June 2011 evaluations. An opinion based 7 on a one-time examination without review of medical records is of questionable value. 8 Reddick v. Chater, 157 F.3d 715, 727 (9th Cir. 1998). The ALJ, moreover, gave little 9 weight to Dr. Edelman s opinion because there was no treating relationship and his 10 opinion was based on a single visit. (AR 30.) By the same logic, little weight is due 11 Dr. Saeid s opinion who also had no treating relationship with Plaintiff and saw Plaintiff 12 but once. The Commissioner s assertion that Dr. Saeid s assessment was a more 13 thorough evaluation of the record is plainly inaccurate. 14 The ALJ s summary dismissal of Dr. Carden s opinion is further weakened by the 15 complete absence of any discussion of CRPS, what it is, what the diagnostic procedures 16 and criteria are and what the appropriate treatment is. There is no analysis offered as to 17 why Dr. Carden s opinion is mistaken other than that Dr. Saeid had a different opinion. 18 The ALJ does not say Dr. Carden s opinion is contradicted by or unsupported by his 19 treatment notes. This is a classic example of not fully developing the record, in this 20 instance by not obtaining an independent neurologist s report. In Social Security cases, 21 the ALJ has a special, independent duty to develop the record fully and fairly and to 22 assure that the claimant s interests are considered. Tonapetyan v. Halter, 242 F.3d 23 1144, 1150 (9th Cir. 2001); Smolen, 80 F.3d at 1288. The ALJ has a basic duty to 24 inform himself about facts relevant to the decision. Heckler v. Campbell, 461 U.S. 458, 25 471 n.1 (1983) (Brennan, J., concurring). The ALJ s duty to develop the record exists 26 even where the claimant is represented by counsel. Tonapetyan, 242 F.3d at 1150. 27 Ambiguous evidence or the ALJ s own finding that the record is inadequate to allow for 28 proper evaluation of the evidence triggers the ALJ s duty to conduct an appropriate 10 1 inquiry. Id. Here, the ALJ did not inform himself about CRPS and the absence of any 2 analysis of it left the evidence about it ambiguous and unresolved. 3 Another error in the ALJ decision is the suggestion of improvement ( significant 4 relief ) in Plaintiff s condition which was cited by the ALJ in discounting Plaintiff s 5 credibility and, by extension, Dr. Carden s opinion. (AR 29.) The ALJ references relief 6 from spinal cord stimulation in 2009 and the Commissioner argues relief through 7 medication. (AR 29, 241.) There are treatment notes, however, that indicate only very 8 short term, temporary pain relief that did not last, including 24 hours (AR 260), 5 days 9 (AR 236-238) and 12 hours (AR 241). Thus, Dr. Edelman noted that, despite aggressive 10 treatment in the form of nerve blocks, medications, spinal cord stimulation and ketamine 11 infusion (AR 324), Plaintiff s pain has persisted to the point she cannot sit long enough to 12 do sedentary work. (AR 326.) The ALJ does not mention this finding in her discussion 13 of Dr. Edelman s opinion. (AR 30.) There is no way to read Dr. Carden s extensive 14 notes or Dr. Edelman s report to mean that Plaintiff obtained permanent relief from her 15 pain symptoms. Dr. Carden and Dr. Edelman clearly did not believe that pain 16 management efforts were successful. The ALJ plainly mischaracterized the record. Any 17 assertion of anything other than temporary relief is unsupported by substantial evidence. 18 Yet another error in the ALJ decision concerns medication side effects. 19 Dr. Carden explicitly noted in his February 16, 2010 letter that Plaintiff cannot work in 20 part because the medications she is taking affect her judgment. (AR 242.) The ALJ 21 never mentions medication side effects. This was error. An ALJ should consider all 22 factors that might have a significant impact on an individual s ability to work, including 23 side effects of medications. SSR 96-7p; Erickson v. Shalala, 9 F.3d 813, 817-18 (9th 24 Cir. 1993) (citing Varney v. Secretary of the HHS, 846 F.2d 581, 585 (9th Cir. 1987), 25 superseded by statute on other grounds, see Bunnell v. Sullivan, 912 F.2d 1149, 115326 54 (9th Cir. 1990)). Medication side effects can be disregarded if unsupported by 27 medical findings, Gallegos v. Astrue, 2010 WL 330242*2-*3 (C.D. Cal. 2010), and must 28 be severe enough to interfere with the ability to work. Osenbrock v. Apfel, 242 F.3d 11 1 1157, 1164 (9th Cir. 2001). In this case, Plaintiff s treating physician specifically found 2 that medication side effects affected Plaintiff s judgment to the point where it would 3 interfere with her ability to work, a medical finding that needs to be disputed factually or, 4 if not, incorporated into Plaintiff s RFC limitations. The ALJ also discounted Dr. Carden s opinion because it was inconsistent with 5 6 Claimant s own descriptions of her functional abilities. (AR 30.) The ALJ, however, 7 does not cite to any evidence to support this conclusory opinion. Earlier in the decision, 8 the ALJ reports that Claimant had trouble sleeping because of pain; she has difficulty 9 with personal grooming and meal preparation, cannot hold household appliances and 10 tires easily. (AR 29.) She has difficulty maintaining attention for more than 15-30 11 minutes before feeling excruciating pain. (AR 29.) The ALJ found Claimant lives alone 12 and drives and works on craft projects and operates a computer. (AR 29.) These daily 13 activities are not necessarily inconsistent with Plaintiff s alleged symptoms and would not 14 satisfy the clear and convincing test, Smolen, 80 F.3d at 1283-84, and certainly would 15 not undermine Dr. Carden s opinion. The ALJ failed to provide specific legitimate reasons supported by substantial 16 17 evidence for discounting the opinions of Dr. Carden and Dr. Edelman. Because the 18 record is not fully developed, the Court will not credit their opinions yet but remand for 19 further proceedings, including further development of the record. The ALJ s RFC is not 1 20 supported by substantial evidence. 21 II. THE ALJ S RFC PRECLUDES WORK AS AN APPOINTMENT CLERK 22 23 24 The VE testified that Plaintiff could perform the representative occupation of appointment clerk (DOT 237.367-010), which is a sedentary and semi-skilled job. (AR 32.) The ALJ accepted this testimony as consistent with the Dictionary of Occupational 25 26 27 28 1 Plaintiff also challenges the ALJ s adverse credibility determination. To some extent the Court has addressed the factors proffered by the ALJ herein to discount Plaintiff s credibility but the Court sees no need to resolve the credibility issue definitively now because the record needs further development of the medical evidence that would affect the credibility analysis. 12 1 Titles ( DOT ). The appointment clerk job, however, is a Reasoning Level 3 occupation. 2 (DOT 237.367-010.) The ALJ s RFC precludes Reasoning Level 3 jobs. The ALJ found Plaintiff had the medically determinable mental impairment of 3 4 depression. (AR 25.) The ALJ also found Plaintiff had mild restrictions in activities of 5 daily activities and moderate restrictions in social functioning and with regard to 6 concentration, persistence and pace. (AR 27.) Accordingly, the ALJ included in her 7 RFC assessment limitations to simple work tasks with simple one to two-step 8 instructions and only occasional interaction with supervisors, co-workers, and the 9 general public. (AR 28.) In assessing these limitations, the ALJ gave great weight to the opinion of 10 11 consulting psychiatrist Dr. Suzanne Dupee. (AR 31, 270-276.) She diagnosed plaintiff 12 with major depressive disorder. (AR 29, 274.) Dr. Dupee found Plaintiff was not 13 impaired in the ability to understand, remember, and carry out simple one or two-step job 14 instructions. (AR 31, 275.) Otherwise, Dr. Dupee opined Plaintiff was moderately 15 impaired in the ability to work. (AR 31, 274, 275.) She also noted that Claimant was not 2 16 under the care of a psychiatrist due to a lack of medical insurance. (AR 271.) The 17 Court also gave moderate weight to State reviewing psychiatrist Dr. Stanley Gold who 18 diagnosed depression. (AR 31, 286.) He found Plaintiff was able to understand, 19 remember and follow simple instructions and was capable of simple repetitive tasks. 20 (AR 31, 293.) Based on these two assessments, the ALJ s RFC limits Plaintiff to simple 21 work tasks with simple one to two-step instructions. A limitation of two steps of instruction corresponds to Level 1 reasoning. Grigsby 22 23 v. Astrue, 2010 WL 309013, at *2 (C.D. Cal. Jan. 22, 2010) ( The restriction to jobs 24 involving no more than two-step instructions is what distinguishes Level 1 reasoning 25 26 27 28 2 The ALJ notes there is no evidence Plaintiff sought mental health treatment (AR 29) but never mentions Dr. Dupee s observation Plaintiff had no insurance. Inability to pay for treatment is not an appropriate basis for denying benefits. Gambler v. Chater, 68 F.3d 319, 322 (9th Cir. 1995). 13 1 from Level 2 reasoning. ); see also Murphy v. Astrue, 2011 WL 124723, at *6 (C.D. Cal. 2 Jan. 13, 2011); Burns v. Astrue, 2010 WL 4795562, at *8 (C.D. Cal. Nov. 18, 2010) 3 (three and four-step instructions consistent with Reasoning Level 2 jobs). By 4 comparison, a simple repetitive tasks limitation has been held consistent with both 5 Reasoning Level 1 (one and two-step instructions) and Reasoning Level 2 (three and 6 four-step instructions); Chavez v. Astrue, 2009 WL 5172857, at *7 n.10 (C.D. Cal. Dec. 7 21, 2009); see also DICOT App. C. Although the Ninth Circuit has not addressed the 8 issue yet, district courts in this Circuit consistently have held that a limitation to simple, 9 repetitive tasks is inconsistent with Reasoning Level 3 jobs. Hamlett v. Astrue, 2012 WL 10 469722, at *4 (C.D. Cal. Feb. 14, 2012) (Reasoning Level 3 jobs inconsistent with simple 11 repetitive non-public tasks); Grimes v. Astrue, 2011 WL 164537, at *4 (C.D. Cal. Jan. 18, 12 2011); Carney v. Astrue, 2010 WL 5060488, at *4 (C.D. Cal. Dec. 6, 2010); Smith v. 13 Astrue, 2011 WL 2749561, at *5 (C.D. Cal. Jul. 13, 2011); Bagshaw v. Astrue, 2010 WL 14 256544, at *5 (C.D. Cal. Jan. 20, 2010); McGensy v. Astrue, 2010 WL 1875810, at *3 15 (C.D. Cal. May 11, 2010); Tich Pham v. Astrue, 695 F. Supp. 2d 1027, 1032 n.7 (C.D. 16 Cal. 2010); Etter v. Astrue, 2010 WL 4314415, at *3 (C.D. Cal. Oct. 22, 2010); Pak v. 17 Astrue, 2009 WL 2151361, at *7 (C.D. Cal. Jul. 14, 2009); Tudino v. Barnhart, 2008 WL 18 4161443, at *11 (S.D. Cal. Sep. 5, 2008) ( Level two reasoning appears to be the 19 breaking point for those individuals limited to performing only simple, repetitive tasks. ); 20 Squier v. Astrue, 2008 WL 2537129, at *5 (C.D. Cal. Jun. 24, 2008) (Reasoning Level 3 21 inconsistent with simple, repetitive work). 22 Based on the above authorities, the limitation to simple one to two-step 23 instructions assessed by Dr. Dupee and included in the ALJ s RFC would limit Plaintiff to 24 Reasoning Level 1 jobs. Dr. Gold s limitation to simple, repetititve tasks would limit 25 Plaintiff to Reasoning Level 2 jobs. Reasoning Level 3 jobs like the appointment clerk 26 position would be precluded under either limitation. Thus, the ALJ s finding that the VE s 27 testimony was consistent with the DOT (AR 32) was not correct. There was a variation 28 and the VE failed to explain that variation as was required. SSR 00-4p; Massachi v. 14 1 Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). Indeed, the ALJ failed to inquire of the VE 2 whether there was any variation from DOT. Nor can it be said that the variation was 3 harmless for the reasons already stated. Id. at 1154 n. 19. 4 The Commissioner nonetheless argues that a limitation to simple repetitive tasks 5 is not necessarily inconsistent with Level 3 reasoning and one must look to the whole 6 record to make that determination. Thus, the Commissioner observes Plaintiff is college 7 educated and has worked as a pharmacy tech, and should be able to handle a 8 Reasoning Level 3 job as an appointment clerk. This argument, however, does not 9 appear in the ALJ decision and cannot be considered here. Connett v. Barnhart, 340 10 F.3d 871, 874 (9th Cir. 2003). The Court also notes the ALJ did not impose a simple 11 repetitive tasks limitation (Reasoning Level 2) but a limitation to simple one and two-step 12 instructions (Reasoning Level 1), which is more restrictive. In any event, the 13 Commissioner s argument is plainly contrary to extensive case authority in this Circuit. 14 Additionally, the limitations assessed by Dr. Dupee, Dr. Gold and the ALJ derive only 15 from her mental impairment of depression. No limitations have been assessed due to 16 pain and medication side effects which Dr. Carden has said affect her judgment and 17 attention. Even considering the record as a whole as the Commissioner urges, Plaintiff s 18 pain, medication and side effects and depression more than offset the background 19 factors cited by the Commissioner in determining what jobs Plaintiff can perform. 20 Additionally, the record needs to be developed further regarding the ALJ s RFC 21 limitation to occasional interaction with supervisors, co-workers and the general public. 22 (AR 28.) The DOT description (237.367-010) appears to make dealing with people a 23 central aspect of the appointment clerk job. Indeed, the DOT summary of job functions 24 demonstrates as much: 25 Schedules appointments with employer or other employees for 26 clients or customers by mail, phone, or in person . . . May telephone or 27 write clients to remind them of appointments . . . May receive callers . . 28 . May operate switchboard. 15 1 These job functions do not appear to involve just occasional interaction with people. 2 There is no specific discussion of this limitation in the record and as noted above the 3 ALJ failed to ask the VE if there were any variations from the DOT. On this record, the 4 Court cannot determine whether the ALJ properly relied on the VE s testimony. 5 Massachi, 486 F.3d at 1154. *** 6 7 The ALJ s rejection of the opinions of Dr. Carden and Dr. Edelman is not 8 supported by specific, legitimate reasons supported by substantial evidence. The ALJ s 9 RFC is not supported by substantial evidence. The ALJ s nondisability determination is 10 not supported by substantial evidence. 11 12 ORDER 13 14 IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the 15 Commissioner of Social Security and remanding this case for further proceedings in 16 accordance with this Memorandum Opinion and Order and with law. 17 18 DATED: December 18, 2013 19 20 21 22 23 24 25 26 27 28 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE

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